Annotated Lecture Transcript

I love the Civil Rights Act because it gives me an
opportunity to clarify something about the “United States Person” distinction I
mentioned at the beginning of the course.

Notice that the Civil Rights Act gives a cause of action not
only to “citizens of the United States” but also any “other person
within the jurisdiction” who is deprived of constitutional or statutory
rights.[1]

This should remind you that while most statutory and
administrative law protections in U.S. intelligence law are designed primarily
to protect “United States persons,” this doesn’t mean that non-United States
persons have no rights while they’re inside the United States.

Foreign nationals who are legally inside the United States
do have constitutional rights under the U.S. Constitution, regardless of
whether they qualify as a “United States Person” or “permanent resident.”[2]

You can be visiting the United States on a non-immigrant
visa,[3] and you have constitutional
rights while you’re our guest.

Even if you happen to be an “undocumented” alien, you are
still entitled to most constitutional protections regardless of the fact that
you’re here illegally.[4]

The Constitution still gives rights to any person
voluntarily within our borders.[5]

ØI say rights are given to people who are “voluntarily”
within the United States because there are some limits to this general rule
that apply to foreign nationals who are forced into the United States against
their will to stand trial—people who are kidnapped[6] or extradicted here and who
have no substantial connection to the United States.[7]

Ø The voluntary-presence limitation just applies to people who
were essentially dragged here to face trial.[8]

oBoth cases arose
from the same set of facts surrounding the torture and murder of an American
DEA agent named Enrique “Kiki” Camarena and a Mexican pilot working with
Camarena named Alfredo Zavala-Avelar.[11]

oAgent Camarena
and his pilot were tortured and killed on Mexican soil by Mexican citizens who
were then forcibly brought to the United States to face trial.

oThe facts
surrounding these cases are pretty terrible.

oAlvarez-Machain
was a doctor who allegedly kept Agent Camerena alive as long as possible so he
could continue to be tortured by his captors.[12]

oAlvarez-Machain
was forcibly kidnapped and brought to the United States to stand trial.[13]

oVerdugo-Urquidez
was arrested by Mexican authorities in Mexico and brought to the U.S. border
where he was taken into custody by U.S. officials.[14]

oThe Supreme
Court held the abduction of Alvarez-Machain did not deprive the trial court of
jurisdiction to try him, upholding an old doctrine dating back to 1886 known as
the Ker-Frisbee Doctrine.[15]

§It’s called “Ker-Frisbee” because it comes from two Supreme Court
cases one called Ker v. Illinois[16] and
another called Frisbee v. Collins.[17]

oIn the other
case, the Supreme Court held that the Fourth Amendment did not apply to the
warrantless search of Verdugo-Urquidez’s residence in Mexico.[18]

§The Court explained that this is because the Fourth Amendment
does not extend its protections beyond U.S. borders to non-citizens who lack
substantial, voluntary ties to the United States.[19]

§The only reason Verdugo-Urquidez was here was because he was
forcibly brought here.[20]

§That’s not a voluntary connection sufficient to make him one of “the
people” protected by the Fourth Amendment.[21]

oThe Verdugo-Urquidez
case is important for Fourth Amendment purposes.

oI talk about Verdugo-Urquidez
in Course II: Constitutional Law and Intelligence when explaining who is
entitled to Fourth Amendment rights.

oIt’s also
important for foreign intelligence operations outside of U.S. territory because
it establishes the territorial limits of Fourth Amendment protections very
clearly, at least with respect to non-United States persons.[22]

oI also talk
about it in a later international law discussion about the jurisdiction to
enforce of U.S. Courts.[23]

ØThe voluntary-presence requirement from the Court’s decision in
Verdugo-Urquidez does not apply to all constitutional rights.

ØIt it applies only to the constitutional protections that are
afforded only to “the people.”

ØIt doesn’t restrict rights that are given to all persons like
those in the Fifth and Sixth Amendments.[24]

oThe Fifth
Amendment, for example, starts out by saying that “No person shall be
held to answer for a capital, or otherwise infamous crime” etc.[25]

oNo person means
no person—not no American person.

ØThe voluntary-presence limitation applies only to rights given to
“the people.”[26]

oThis means
rights contained in Amendments that are worded like the Fourth Amendment, which
says that “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated” etc.[27]

oAlso, the First
Amendment’s right to free speech, the Second Amendment’s right to bear arms,
and various other rights contained in the Constitution.[28]

oThese
guarantees are worded so that they apply to “the people,” whereas the
Fifth Amendment says that “no person” shall be denied its protections
which means nobody.[29]

ØI know it’s a fine distinction—maybe even a ridiculous one—but
that’s how the Supreme Court sees it, so that’s what we’re stuck with.

Footnotes

[1] 42 U.S.C. § 1983 (“Civil
action for deprivation of rights: Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress, […]”) (emphasis
added).

[2]See Kwong Hai
Chew v. Colding, 344 U.S. 590, 596 n. 5 (1953) (“The Bill of Rights is a futile
authority for the alien seeking admission for the first time to these shores.
But once an alien lawfully enters and resides in this country he becomes
invested with the rights guaranteed by the Constitution to all people within
our borders”); see also generally Bridges v. Wixon, 326 U.S. 135, 148
(1945) (First Amendment rights extend to resident aliens); Russian Volunteer
Fleet v. United States, 282 U.S. 481 (1931) (Fifth Amendment’s Just
Compensation Clause protects non-U.S. citizens); Wong Wing v. United States,
163 U.S. 228, 238 (1896) (Fifth and Sixth Amendment rights apply to resident
aliens); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (Fourteenth Amendment
rights apply to resident aliens); see also United States v.
Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (recognizing that the Supreme
Court’s precedent establishes “that aliens receive constitutional protections
when they have come within the territory of the United States and developed
substantial connections with the country.”).

[3]See 8 U.S.C. §
1101(a)(26) (2010) (Title 8—Chapter 12: Immigration and Nationality) (“(a) As
used in this Act—(26) The term "nonimmigrant visa" means a visa
properly issued to an alien as an eligible non-immigrant by a competent officer
as provided in this Act.”).

CAVEAT: In United States v. Verdugo-Urquidez, however,
Chief Justice Rehnquist’s majority opinion stated in dicta that the
Court’s prior holding in INS v. Lopez-Mendoza did not directly resolve the
question of whether the Fourth Amendment applies to illegal aliens voluntarily
within the United States. United States v. Verdugo-Urquidez, 494 U.S. 259, 272
(1990) (“The question presented for decision in Lopez-Mendoza was limited to
whether the Fourth Amendment's exclusionary rule should be extended to civil
deportation proceedings; it did not encompass whether the protections of the
Fourth Amendment extend to illegal aliens in this country.").

The Verdugo-Urquidez decision did not rule on the
question of Fourth Amendment rights for illegal aliens voluntarily within the
United States either, but the Court’s dicta did indicate that illegal
aliens with ties to the community were different than the respondent
Verdugo-Urquidez, whose only tie to the United States was that he had been
forcibly extradicted here to face trial. See United States v.
Verdugo-Urquidez, 494 U.S. 259, 272-273 (1990) (“Our statements in
Lopez-Mendoza are therefore not dispositive of how the Court would rule on a
Fourth Amendment claim by illegal aliens in the United States if such a claim
were squarely before us. Even assuming such aliens would be entitled to Fourth
Amendment protections, their situation is different from respondent's. The
illegal aliens in Lopez-Mendoza were in the United States voluntarily and
presumably had accepted some societal obligations; but respondent had no
voluntary connection with this country that might place him among 'the
people' of the United States.”) (emphasis added).

[5]See generally
United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (recognizing that
the Supreme Court’s precedent establishes “that aliens receive constitutional
protections when they have come within the territory of the United States and
developed substantial connections with the country.”).

[8] Still, even foreign
nationals who are involuntarily present within the United States to face trial
still have basic Fifth Amendment Due Process rights afforded to all criminal
defendants. See generally United States v. Verdugo-Urquidez, 494 U.S.
259, 278 (1990) (Kennedy, J., concurring) (“I do not mean to imply, and the
Court has not decided, that persons in the position of the respondent have no
constitutional protection. The United States is prosecuting a foreign national
in a court established under Article III, and all of the trial proceedings are
governed by the Constitution. All would agree, for instance that the dictates
of the Due Process Clause of the Fifth Amendment protect the defendant”).

[9] United States v.
Alvarez-Machain, 504 U.S. 655 (1992) (Official Case Syllabus: "Respondent,
a citizen and resident of Mexico, was forcibly kidnaped from his home and flown
by private plane to Texas, where he was arrested for his participation in the kidnaping
and murder of a Drug Enforcement Administration (DEA) agent and the agent's
pilot. After concluding that DEA agents were responsible for the abduction, the
District Court dismissed the indictment on the ground that it violated the
Extradition Treaty between the United States and Mexico (Extradition Treaty or
Treaty), and ordered respondent's repatriation. The Court of Appeals affirmed.
Based on one of its prior decisions, the court found that, since the United
States had authorized the abduction and since the Mexican Government had
protested the Treaty violation, jurisdiction was improper.

ØHeld: The fact of respondent's forcible abduction does not
prohibit his trial in a United States court for violations of this country's
criminal laws. Pp. 659-670.

o(a) A defendant may not be prosecuted in violation of the terms
of an extradition treaty. United States v. Rauscher, 119 U.S. 407, 30 L. Ed.
425, 7 S. Ct. 234. However, when a treaty has not been invoked, a court may
properly exercise jurisdiction even though the defendant's presence is procured
by means of a forcible abduction. Ker v. Illinois, 119 U.S. 436, 30 L. Ed. 421,
7 S. Ct. 225. Thus, if the Extradition Treaty does not prohibit respondent's
abduction, the rule of Ker applies and jurisdiction was proper. Pp. 659-662.

o(b) Neither the Treaty's language nor the history of negotiations
and practice under it supports the proposition that it prohibits abductions
outside of its terms. The Treaty says nothing about either country refraining
from forcibly abducting people from the other's territory or the consequences
if an abduction occurs. In addition, although the Mexican Government was made
aware of the Ker doctrine as early as 1906, and language to curtail Ker was
drafted as early as 1935, the Treaty's current version contains no such clause.
Pp. 663-666.

o(c) General principles of international law provide no basis for
interpreting the Treaty to include an implied term prohibiting international
abductions. It would go beyond established precedent and practice to draw such
an inference from the Treaty based on respondent's argument that abductions are
so clearly prohibited in international law that there was no reason to include
the prohibition in the Treaty itself. It was the practice of nations with regard
to extradition treaties that formed the basis for this Court's decision in
Rauscher, supra, to imply a term in the extradition treaty between the United
States and England. Respondent's argument, however, would require a much larger
inferential leap with only the most general of international law principles to
support it. While respondent may be correct that his abduction was
"shocking" and in violation of general international law principles,
the decision whether he should be returned to Mexico, as a matter outside the
Treaty, is a matter for the Executive Branch. Pp. 666-670.").

[10] United States v.
Verdugo-Urquidez, 494 U.S. 259 (1990) (Official Case Syllabus: "After the
Government obtained an arrest warrant for respondent -- a Mexican citizen and
resident believed to be a leader of an organization that smuggles narcotics
into this country -- he was apprehended by Mexican police and transported here,
where he was arrested. Following his arrest, Drug Enforcement Administration
(DEA) agents, working with Mexican officials, searched his Mexican residences
and seized certain documents. The District Court granted his motion to
suppress the evidence, concluding that the Fourth Amendment -- which protects
"the people" against unreasonable searches and seizures -- applied to
the searches, and that the DEA agents had failed to justify searching the
premises without a warrant. The Court of Appeals affirmed. Citing Reid v.
Covert, 354 U.S. 1 -- which held that American citizens tried abroad by United
States military officials were entitled to Fifth and Sixth Amendment
protections -- the court concluded that the Constitution imposes substantive
constraints on the Federal Government, even when it operates abroad. Relying on
INS v. Lopez-Mendoza, 468 U.S. 1032 -- where a majority assumed that illegal
aliens in the United States have Fourth Amendment rights -- the court observed
that it would be odd to acknowledge that respondent was entitled to
trial-related rights guaranteed by the Fifth and Sixth Amendments, but not to
Fourth Amendment protection.

ØHeld: The Fourth Amendment does not apply to the search and
seizure by United States agents of property owned by a nonresident alien and
located in a foreign country. Pp. 264-275.

Ø(a) If there were a constitutional violation in this case, it
occurred solely in Mexico, since a Fourth Amendment violation is fully
accomplished at the time of an unreasonable governmental intrusion whether or
not the evidence seized is sought for use in a criminal trial. Thus, the
Fourth Amendment functions differently from the Fifth Amendment, whose
privilege against self-incrimination is a fundamental trial right of criminal
defendants. P. 264.

Ø(b) The Fourth Amendment phrase "the people" seems to
be a term of art used in select parts of the Constitution and contrasts with
the words "person" and "accused" used in Articles of the
Fifth and Sixth Amendments regulating criminal procedures. This suggests that
"the people" refers to a class of persons who are part of a national
community or who have otherwise developed sufficient connection with this
country to be considered part of that community. Pp. 264-266.

Ø(c) The Fourth Amendment's drafting history shows that its
purpose was to protect the people of the United States against arbitrary action
by their own Government and not to restrain the Federal Government's actions
against aliens outside United States territory. Nor is there any indication
that the Amendment was understood by the Framers' contemporaries to apply to
United States activities directed against aliens in foreign territory or in
international waters. Pp. 266-268.

Ø(d) The view that every constitutional provision applies wherever
the Government exercises its power is contrary to this Court's decisions in the
Insular Cases, which held that not all constitutional provisions apply to
governmental activity even in territories where the United States has sovereign
power. See, e. g., Balzac v. Porto Rico, 258 U.S. 298. Indeed, the claim that
extraterritorial aliens are entitled to rights under the Fifth Amendment --
which speaks in the relatively universal term of "person" -- has been
emphatically rejected. Johnson v. Eisentrager, 339 U.S. 763, 784. Pp. 268-269.

Ø(e) Respondent's reliance on Reid, supra, is misplaced, since
that case stands only for the proposition that United States citizens stationed
abroad could invoke the protection of the Fifth and Sixth Amendments.
Similarly, those cases in which aliens have been determined to enjoy certain
constitutional rights establish only that aliens receive such protections when
they have come within the territory of, and have developed substantial
connections with, this country. See, e. g., Plyler v. Doe, 457 U.S. 202, 212.
Respondent, however, is an alien with no previous significant voluntary
connection with the United States, and his legal but involuntary presence here
does not indicate any substantial connection with this country. The Court of
Appeals' reliance on INS v. Lopez-Mendoza, supra, is also misplaced, since that
case assumed that, but did not expressly address the question whether, the
Fourth Amendment applies to illegal aliens in the United States. Even assuming
such aliens -- who are in this country voluntarily and presumably have accepted
some societal obligations -- would be entitled to Fourth Amendment protections,
their situation differs from that of respondent, who had no voluntary
connection with this country that might place him among "the people."
This Court's decisions expressly according differing protection to aliens than
to citizens also undermine respondent's claim that treating aliens differently
under the Fourth Amendment violates the equal protection component of the Fifth
Amendment. Pp. 269-273.

Ø(f) The Court of Appeals' rule would have significant and
deleterious consequences for the United States in conducting activities beyond
its borders. The rule would apply not only to law enforcement operations
abroad, but also to other foreign operations -- such as armed forces actions --
which might result in "searches and seizures." Under the rule, aliens
with no attachment to this country might bring actions for damages to remedy
claimed violations of the Fourth Amendment in foreign countries or in
international waters, and Members of the Executive and Legislative Branches
would be plunged into a sea of uncertainty as to what might be reasonable in
the way of searches and seizures conducted abroad. Any restrictions on searches
and seizures incident to American action abroad must be imposed by the
political branches through diplomatic understanding, treaty, or legislation.
Pp. 273-275.").

[11] Rene Martin
Verdugo-Urquidez was an alleged Mexican drug kingpin who was convicted of the
torture and murder of DEA Special Agent Enrique Camarena Salazar in a separate
criminal prosecution in the United States. United States v. Verdugo-Urquidez,
No. CR-87-422-ER (CD Cal., Nov. 22, 1988); see also United States v.
Verdugo-Urquidez, 494 U.S. 259, 262 (1990) (“Respondent Rene Martin
Verdugo-Urquidez is a citizen and resident of Mexico. He is believed by the
United States Drug Enforcement Agency (DEA) to be one of the leaders of a large
and violent organization in Mexico that smuggles narcotics into the United
States.”).

Humberto Alvarez-Machain was a medical doctor alleged
to have participated in the kidnapping and murder of U.S. DEA agent Enrique
Camarena-Salazar “by prolonging Agent Camarena's life so that others could
further torture and interrogate him.” See United States v.
Alvarez-Machain, 504 U.S. 655, 657 (1992) (“Respondent, Humberto
Alvarez-Machain, is a citizen and resident of Mexico. He was indicted for
participating in the kidnap and murder of United States Drug Enforcement
Administration (DEA) special agent Enrique Camarena-Salazar and a Mexican pilot
working with Camarena, Alfredo Zavala-Avelar. The DEA believes that respondent,
a medical doctor, participated in the murder by prolonging Agent Camarena's
life so that others could further torture and interrogate him. On April 2,
1990, respondent was forcibly kidnaped from his medical office in Guadalajara,
Mexico, to be flown by private plane to El Paso, Texas, where he was arrested
by DEA officials. The District Court concluded that DEA agents were responsible
for respondent's abduction, although they were not personally involved in it.
United States v. Caro-Quintero, 745 F. Supp. 599, 602-604, 609 (CD Cal.
1990).”).

[12]See United
States v. Alvarez-Machain, 504 U.S. 655, 657 (1992) (“Respondent, Humberto
Alvarez-Machain, is a citizen and resident of Mexico. He was indicted for participating
in the kidnap and murder of United States Drug Enforcement Administration (DEA)
special agent Enrique Camarena-Salazar and a Mexican pilot working with
Camarena, Alfredo Zavala-Avelar. The DEA believes that respondent, a medical
doctor, participated in the murder by prolonging Agent Camarena's life so that
others could further torture and interrogate him.”).

[13]See United
States v. Alvarez-Machain, 504 U.S. 655, 657 (1992) (“On April 2, 1990,
respondent was forcibly kidnaped from his medical office in Guadalajara,
Mexico, to be flown by private plane to El Paso, Texas, where he was arrested
by DEA officials. The District Court concluded that DEA agents were responsible
for respondent's abduction, although they were not personally involved in it. United
States v. Caro-Quintero, 745 F. Supp. 599, 602-604, 609 (CD Cal. 1990).”).

[14] United States v.
Verdugo-Urquidez, 494 U.S. 259, 262 (1990) (“In January 1986, Mexican police
officers, after discussions with United States marshals, apprehended Verdugo-Urquidez
in Mexico and transported him to the United States Border Patrol station in
Calexico, California. There, United States marshals arrested respondent and
eventually moved him to a correctional center in San Diego, California, where
he remains incarcerated pending trial.”).

[15] United States v.
Alvarez-Machain, 504 U.S. 655, 657 (1992) (“The issue in this case is whether a
criminal defendant, abducted to the United States from a nation with which it
has an extradition treaty, thereby acquires a defense to the jurisdiction of
this country's courts. We hold that he does not, and that he may be tried in
federal district court for violations of the criminal law of the United
States.”); see also Ker v. Illinois, 119 U.S. 436 (1886) (forcible
abduction of a defendant to bring him within the jurisdiction of a court does
not deprive that court of jurisdiction to try him for criminal offenses); see
also Frisbie v. Collins, 342 U.S. 519, 522, rehearing denied, 343 U.S. 937
(1952) (“This Court has never departed from the rule announced in [Ker] that
the power of a court to try a person for crime is not impaired by the fact that
he had been brought within the court's jurisdiction by reason of a 'forcible
abduction.' No persuasive reasons are now presented to justify overruling this
line of cases. They rest on the sound basis that due process of law is
satisfied when one present in court is convicted of crime after having been
fairly apprized of the charges against him and after a fair trial in accordance
with constitutional procedural safeguards. There is nothing in the Constitution
that requires a court to permit a guilty person rightfully convicted to escape
justice because he was brought to trial against his will.”).

The Ker-Frisbee Doctrine is mostly unassailable in
practical application, but there are a few exceptions where courts have
declined to allow jurisdiction in cases where the kidnapped defendant was
subjected to egregious due process violations during the course of his forcible
transfer to the United States to face trial. See e.g. United States v.
Toscanino, 500 F.2d 267 (2d Cir.), rehearing denied, 504 F.2d 1380 (2d
Cir.1974) (holding—on due process grounds—that the Ker-Frisbee Doctrine—which
allows U.S. courts to maintain jurisdiction over individuals who are forced
into their jurisdiction in order to face trial—was inapplicable to a forcible
transfer that involved the kidnapping and torture of an Italian citizen by U.S.
agents in Uraguay who held him captive, kept him blindfolded, and beat him
repeatedly while interrogating him for several weeks before forcibly transporting
him into the territory of the United States to face trial for the crimes he'd
confessed to during enhanced interrogation).

[18] United States v.
Verdugo-Urquidez, 494 U.S. 259, 261 (1990) ("The question presented by
this case is whether the Fourth Amendment applies to the search and seizure by
United States agents of property that is owned by a nonresident alien and
located in a foreign country. We hold that it does not.").

[19]See United
States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990) (“respondent had no
voluntary connection with this country that might place him among 'the
people' of the United States.”) (emphasis added).

[20] United States v.
Verdugo-Urquidez, 494 U.S. 259, 262 (1990) (“In January 1986, Mexican police
officers, after discussions with United States marshals, apprehended
Verdugo-Urquidez in Mexico and transported him to the United States Border
Patrol station in Calexico, California. There, United States marshals arrested
respondent and eventually moved him to a correctional center in San Diego,
California, where he remains incarcerated pending trial.”).

[21]See United
States v. Verdugo-Urquidez, 494 U.S. 259, 264-266 (1990) ("The Fourth
Amendment provides: 'The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated [...]' That text, by contrast with the Fifth
and Sixth Amendments, extends its reach only to 'the people.' [...] 'the
people' seems to have been a term of art employed in select parts of the
Constitution. The Preamble declares that the Constitution is ordained and
established by 'the People of the United States.' The Second Amendment
protects 'the right of the people to keep and bear Arms,' and the Ninth
and Tenth Amendments provide that certain rights and powers are retained by and
reserved to 'the people.' See also U.S. Const., Amdt. 1
('Congress shall make no law . . . abridging . . . the right of the people
peaceably to assemble') (emphasis added); Art. I, § 2, cl. 1 ('The House of
Representatives shall be composed of Members chosen every second Year by the
People of the several States') (emphasis added). While this textual
exegesis is by no means conclusive, it suggests that 'the people'
protected by the Fourth Amendment, and by the First and Second Amendments, and
to whom rights and powers are reserved in the Ninth and Tenth Amendments,
refers to a class of persons who are part of a national community or who have
otherwise developed sufficient connection with this country to be considered
part of that community. See United States ex rel. Turner v. Williams,
194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment
rights, because 'he does not become one of the people to whom these
things are secured by our Constitution by an attempt to enter forbidden by
law'). The language of these Amendments contrasts with the words 'person' and
'accused' used in the Fifth and Sixth Amendments regulating procedure in
criminal cases.") (emphasis added).

[22] United States v.
Verdugo-Urquidez, 494 U.S. 259, 261 (1990) ("The question presented by
this case is whether the Fourth Amendment applies to the search and seizure by
United States agents of property that is owned by a nonresident alien and
located in a foreign country. We hold that it does not.").

[23]See generallyCharles Doyle, Congressional Research Serv.,
Extraterritorial Application of American Criminal Law, (2010), available
athttps://intelligencelaw.com/files/pdf/law_library/crs/94-166_3-26-2010.pdf
(“In the area of extraterritorial jurisdiction, the most often cited limitation
resides in the due process clauses of the Fifth and Fourteenth Amendments.
While the enumerated powers may carry specific limits which govern the extent
to which the power may be exercised overseas, the general restrictions of the
due process clauses, particularly the Fifth Amendment due process clause, have
traditionally been mentioned as the most likely to define the outer reaches of
the power to enact and enforce legislation with extraterritorial
application.”).

[24]See United
States v. Verdugo-Urquidez, 494 U.S. 259, 264-266 (1990) ("The Fourth
Amendment provides: 'The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated [...]' That text, by contrast with the Fifth
and Sixth Amendments, extends its reach only to 'the people.' [...] 'the
people' seems to have been a term of art employed in select parts of the
Constitution. The Preamble declares that the Constitution is ordained and
established by 'the People of the United States.' The Second Amendment
protects 'the right of the people to keep and bear Arms,' and the Ninth
and Tenth Amendments provide that certain rights and powers are retained by and
reserved to 'the people.' See also U.S. Const., Amdt. 1
('Congress shall make no law . . . abridging . . . the right of the people
peaceably to assemble') (emphasis added); Art. I, § 2, cl. 1 ('The House of
Representatives shall be composed of Members chosen every second Year by the
People of the several States') (emphasis added). While this textual
exegesis is by no means conclusive, it suggests that 'the people'
protected by the Fourth Amendment, and by the First and Second Amendments, and
to whom rights and powers are reserved in the Ninth and Tenth Amendments,
refers to a class of persons who are part of a national community or who have
otherwise developed sufficient connection with this country to be considered
part of that community. See United States ex rel. Turner v. Williams,
194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment
rights, because 'he does not become one of the people to whom these
things are secured by our Constitution by an attempt to enter forbidden by
law'). The language of these Amendments contrasts with the words 'person' and
'accused' used in the Fifth and Sixth Amendments regulating procedure in
criminal cases.") (emphasis added).

[25]U.S. Const. amend. V (“No person shall be held to
answer for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in the land or naval
forces, or in the militia, when in actual service in time of war or public
danger; nor shall any person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public use, without
just compensation.”) (emphasis added).

[26]See United
States v. Verdugo-Urquidez, 494 U.S. 259, 264-266 (1990) ("The Fourth
Amendment provides: 'The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated [...]' That text, by contrast with the Fifth
and Sixth Amendments, extends its reach only to 'the people.' [...] 'the
people' seems to have been a term of art employed in select parts of the
Constitution. The Preamble declares that the Constitution is ordained and
established by 'the People of the United States.' The Second Amendment
protects 'the right of the people to keep and bear Arms,' and the Ninth
and Tenth Amendments provide that certain rights and powers are retained by and
reserved to 'the people.' See also U.S. Const., Amdt. 1
('Congress shall make no law . . . abridging . . . the right of the people
peaceably to assemble') (emphasis added); Art. I, § 2, cl. 1 ('The House of
Representatives shall be composed of Members chosen every second Year by the
People of the several States') (emphasis added). While this textual
exegesis is by no means conclusive, it suggests that 'the people'
protected by the Fourth Amendment, and by the First and Second Amendments, and
to whom rights and powers are reserved in the Ninth and Tenth Amendments,
refers to a class of persons who are part of a national community or who have
otherwise developed sufficient connection with this country to be considered
part of that community. See United States ex rel. Turner v. Williams,
194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment
rights, because 'he does not become one of the people to whom these
things are secured by our Constitution by an attempt to enter forbidden by
law'). The language of these Amendments contrasts with the words 'person' and
'accused' used in the Fifth and Sixth Amendments regulating procedure in
criminal cases.") (emphasis added).

[27]U.S. Const. amend. IV (“The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.”)
(emphasis added).

[28]See United
States v. Verdugo-Urquidez, 494 U.S. 259, 264-266 (1990) ("The Preamble
declares that the Constitution is ordained and established by 'the People
of the United States.' The Second Amendment protects 'the right of the
people to keep and bear Arms,' and the Ninth and Tenth Amendments provide
that certain rights and powers are retained by and reserved to 'the people.'
See also U.S. Const., Amdt. 1 ('Congress shall make no law . . .
abridging . . . the right of the people peaceably to assemble')
(emphasis added); Art. I, § 2, cl. 1 ('The House of Representatives shall be
composed of Members chosen every second Year by the People of the
several States') (emphasis added). While this textual exegesis is by no means
conclusive, it suggests that 'the people' protected by the Fourth
Amendment, and by the First and Second Amendments, and to whom rights and
powers are reserved in the Ninth and Tenth Amendments, refers to a class of
persons who are part of a national community or who have otherwise developed
sufficient connection with this country to be considered part of that
community.”) (emphasis added).

[29] Note, however, this
broad application of Fifth Amendment rights applies only to persons within the
United States. The Supreme Court has held that the Fifth Amendment does not
apply to foreign nationals being tried outside the United States. See
Johnson v. Eisentrager, 339 U.S. 763 (1950) (holding that the Fifth Amendment
does not apply to the trial of foreign citizens abroad).